Plebgate – the sequel!

"Plebgate" MP Andrew Mitchell will be glad to see the back of 2013. Not only did he lose his ministerial post he has just (on the 27 November 2013) lost an Appeal in his related case against The Sun newspaper .

In his case against The Sun Mr Mitchells solicitors had failed to file on time (i.e. no later than 7 days before a scheduled hearing) what is known as a "Costs Budget ". As a result the High Court ordered that Mr Mitchell's legal costs which may (in the event he won his case) be recoverable from The Sun be limited to only the court fees he had incurred .

But for that order and in the event he won his case against The Sun Mr Mitchell would otherwise have been able to recover not only the court fees incurred but also all other legal fees incurred (such as solicitors , barristers and expert witness fees etc). For Mr Mitchell this means that if he wins his case against The Sun, he will now only be able to recover Court Fees of probably less than four thousand pounds when otherwise he could have recovered legal fees incurred which are likely to be measured in tens of thousands of pounds.

His solicitors will be none too happy about this either because, as it was their failure which caused this problem for Mr Mitchell, they are going to have to resolve it for him .

The Court of Appeal decision had also been anxiously awaited by the legal profession generally as it would provide an indication as to how the Courts would implement the Jackson Reforms which came into force in April 2013.

Prior to April 2013 and generally speaking if a litigant was in breach of a court order in circumstances were the breach did not prejudice the other side and did not prejudice the general course of the litigation the court would be highly likely to grant, what lawyers refer to as, "relief from sanction". In Mr Mitchell's case this would have meant that it was highly likely that the Court would have allowed him to file his Cost Budget late without penalising him to any significant degree and would certainly not have deprived him of the possibility of The Sun having to pay his legal costs.

Unfortunately for Mr Mitchell, the failure to file the Cost Budget on time took place after 1st April 2013 and after the Jackson Reforms came into effect. As part of these reforms, new rules were introduced to guide the Court when deciding whether or not to grant a litigant "relief from sanction". In particular the Court is now required to consider (amongst all other circumstances) the need to enforce compliance with the rules, practice directions and orders.

The Court of Appeals decision may appear very harsh, however, this case marks a sea change in the Court's attitude to its rules and the orders it makes. To quote one of the Court of Appeal Judges the Court's intention was to "send out a very clear message". That message is that the Court can no longer be expected to be sympathetic or a "soft touch" to litigants who fail to obey it's orders or rules.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.